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Mode of Discovery in Criminal Cases

Section 10.Production or inspection of material evidence in possession of prosecution. — Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies. Rule 116, Sec. 10, Rules of Court)

What is the right to modes of discovery?

It is the right of the accused to move for the production or inspection or material evidence in the possession of the prosecution. It authorizes the defense to inspect, copy, or photograph any evidence of the prosecution in its possession after obtaining permission of the court.

[Take note of Rule 112, Section 8 [b], the records of the preliminary investigation do not form part of the records of the case when it reaches the court. That is why your remedy is to have them inspected. - Dean Iñigo]

What is the purpose of this right?

The purpose is to prevent surprise to the accused and the suppression or alteration of evidence.

Is this right available during preliminary investigation?

Yes, when indispensable to protect his constitutional right to life, liberty, and property. (Webb v. de Leon, G.R. No. 121234, August 23, 1995)

The Supreme Court held:

"Our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial.

This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. (Meaning, even if it is under preliminary investigation, your liberty is already in danger. - Dean Iñigo)

The right to discovery is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of potential accused.

In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. The rationale is well put by Justice Brennan in Brady – “society wins not only when the guilty are convicted but when criminal trials are fair.” Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.” (Webb v. de Leon)